Using Donated Sperm: What Does The Law Say?

For a legal perspective now on the reproductive medicine industry, we turn to Naomi Cahn. She is a professor of law at the George Washington University, specializing in family law and reproductive technology. She is also the author of the book, "Test Tube Families: Why the Fertility Market Needs Legal Regulation."

Professor Cahn, nice to have you.

NAOMI CAHN: Thank you very much.

COX: Now, you've had a chance to hear what both Wendy Kramer and Sean Tipton had to say. Can you give us a quick overview of what laws and regulations are currently in place for this industry?

CAHN: The federal government regulates the fertility industry in two different ways. One, is it requires clinics to report their success rates when they use advanced reproductive technologies like in vitro fertilization. The second form of regulation involves the Food and Drug Administration, the FDA, which requires, when sperm and egg are being used - which requires certain types of testing for sexually transmitted diseases.

COX: One of the issues, as you heard involved in this discussion, is whether or not a donor has privacy rights that trump those of the children who may be trying to seek his identity. Where does the law come down on that?

CAHN: This is an issue that the law is only now starting to confront. So far in the United States, while there have been a few cases brought in which parents have sought to determine the identity of a donor because of medical issues involving their children, there has not yet been a large case or any kind of major case brought in which children are claiming the rights to know their donors. It differs in other countries.

Are there civil remedies, for example, for a person? Let's say - one of the things that was brought up in the previous conversation was that some women are going to what they believe to be non-anonymous donors and are finding out after the fact that they do not have access to the donor. Do you have a civil remedy in a case like that?

Depending on the kind of representations or on the type of contract that was entered into, there might be a claim for breach of contract. There might also be other kinds of legal claims, but this all has yet to be tested. We're in a new world of trying to figure out who has rights and what those rights are.

COX: It sounds terribly murky. By comparison, adopted children have much more in terms of legal rights than these children do.

CAHN: In some states, adopted children do have the rights to see their original birth certificates and, in other states, the state has set up a registry so that adopted children and their biological parents can register to meet one another.

So the state of regulation in the adoption world is much farther than it is in the world of donor-conceived offspring.

COX: Is there, Professor Cahn, any criminality involved when, let's say, a man goes to a sperm bank and donates and goes to another and donates and - does that in any way violate criminal law on a state level or a federal level?

CAHN: Being able to donate in as many places as you want is certainly permitted by the law. As Sean said, the ASRM has guidelines on how many times an individual's sperm should be able to be used in a certain population.

But there's nothing that prevents one man from donating his sperm at all of the different sperm banks in the United States and then going overseas and continuing to donate. The only issue is, if he is asked where he has donated in the past and if he then lies, then that's a lie. But the basic point is that he can donate his sperm whenever and wherever he wants to, so long as he complies with the requirements of the sperm bank.

COX: And what responsibilities do the sperm banks have to both the donor, as well as to the person that is the recipient?

CAHN: Well, legally, federal law requires some testing. As I said, some testing for some sexually transmitted diseases of the donor and there is screening for risk factors that the federal government requires. Some states may also require a bit more screening. Beyond that, it's up to individual sperm banks to decide what additional tests they want to perform. Many don't offer some of the most common tests for genetic screening. Some do, and that's going to vary by bank.

COX: Final question is this: Are we in a situation where we're talking about a few anecdotal, isolated kinds of cases? Or are we talking about enough numbers of people that this is something that needs national attention and it needs it now?

CAHN: This is something that needs national attention, and we are talking about a number of people. As Wendy Kramer said, on the Donor Sibling Registry, she knows of many large donor sibling groups. On the other hand, we also have no idea how many children are born each year as a result of donor sperm. We have no records of how often donor sperm is used and no way of tracking that information.

So the full dimensions of the problems are only now just beginning to be realized as donor-conceived offspring and donors and parents of donor-conceived offspring come forward to talk about these issues.

COX: Naomi Cahn is a professor of law at the George Washington University, specializing in family law and reproductive technology. She joined us here in our Washington studio. Professor Cahn, thank you very much.

CAHN: Thank you very much.

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